To get a “good” settlement for your whiplash injury, there are many factors to assess. Does the injury disable you? How long does the pain last? Always review your case with a lawyer to determine what your settlement should be worth.
Most whiplash injuries result in three areas of damages: medical bills, lost wages, and pain and suffering. Each one depends on the degree of injury, how long the condition lasts, and what specific symptoms you face. Since these cases often come from car accidents, there are also questions about whether you can claim damages against the defendant at all, or whether you have to rely on your own insurance alone.
For help, call the New Windsor, NY personal injury lawyers at Basch, Keegan & Spada today at (845) 303-2748.
What Damages Go into a Settlement?
One of the most important factors in judging a settlement offer is making sure it covers all areas of damages it can:
Medical Bills
The cost of treating your injury should be paid in full. This includes hospital visits, X-rays/MRIs, and even physical therapy or chiropractic care.
Lost Wages
If your whiplash injury caused you to miss any work, the lost wages should be paid in the settlement. This is true even if your injury didn’t happen at work.
Pain and Suffering
Pain and suffering damages are one of the main areas of damages for whiplash. Your injury might not cause much by way of economic damages if you did not need serious medical care and returned to work quickly, but it could still cause discomfort and pain for months or years.
Other Costs
Other economic factors could also be covered. For example, in a car accident, you need your vehicle repairs covered in the settlement, too.
Who Pays a Settlement?
The defendant is usually the one to pay the settlement. This could be a person or a company.
In cases where someone was working when the accident happened, their employer might pay in their place.
If the defendant has insurance to cover the accident, insurance will pay for them. However, the settlement can still be more than the insurance policy limits, meaning the defendant would be agreeing to pay out of pocket for the overage.
How Damages Work in a Car Accident Case in New York
Whiplash is common in car accident cases, meaning that any settlement negotiations will have to first deal with the car insurance laws in New York.
Your Insurance Pays First
In New York, we have a no-fault system. This means your insurance pays first through your PIP (personal injury protection) coverage. This pays a portion of medical bills and lost earnings, up to certain limits, regardless of who caused the accident.
Serious Injury Threshold
Before you can reach past your insurance and go after the defendant (directly or through their insurance), you need to show you have “serious injuries.” This often requires any of these:
- A permanent injury
- A disabling injury
- A “permanent consequential limitation of use” of a body part
- A “significant limitation of use of a body function” or
- A fracture.
Defendant’s Insurance
If you meet that threshold, then you can go after the defendant’s liability insurance. We usually start with an insurance claim and file in court to progress the case, but we can settle even after filing in court.
Note that property damage coverage always comes from the defendant’s insurance, but add-ons like collision coverage can help, too. Our “no-fault” restrictions only apply to personal injury damages.
Are Whiplash Injuries Considered “Serious Injuries” Under NY’s Car Insurance Laws?
Some whiplash injuries might not qualify as “serious” under New York’s no-fault rules. This would prevent you from being able to go after the other driver for your injuries.
However, you should always have our Albany, NY personal injury lawyers and a doctor review your case. Whiplash often does cause a “permanent consequential limitation” or “significant limitation” that can qualify as a serious injury. If there is a fracture involved, it automatically qualifies.
Do Whiplash Settlements Cover Surgery?
Surgery is typically only needed to treat whiplash in the most serious cases. This might involve serious tears or damage to the disc between the vertebrae in your neck.
If your injury is serious enough to require surgery, then it should definitely be covered in your settlement, or else the settlement might be too low.
Do Whiplash Settlements Cover Physical Therapy, Rehabilitation, and Chiropractic Care?
Physiotherapy and rehabilitation are often needed to treat whiplash injuries in moderate to severe cases. These costs are routinely covered and should be included in your settlement.
Chiropractic care is often covered as well and may be covered alongside other holistic practices, like acupuncture, if this care is provided by a licensed provider. You may alternatively seek compensation for things like therapeutic massages or other treatments.
Should You Sue or Settle Your Case?
Often, you have to sue before you can settle your case fairly.
Insurance claims may result in full payment out of the gate or with only a bit of negotiation, but this is rare. Instead, it often takes the pressure of a lawsuit being filed to get the defendant and their insurance company to come to the negotiating table.
We can file your case in court and still settle after that point; you do not have to go to trial just because the case was filed in court.
Should You Go to Trial or Settle?
If a settlement cannot be reached, going to trial may be the only way to get your claim paid. The defendant and their insurance company may hope that you will cave to a lower offer, but if that is not enough, we can prepare to go to trial instead.
At trial, the jury decides damages, which could come out to be more or less than what you demanded in settlement. This is always a risk, and it may be better to accept a settlement than risk trial. We must assess the specifics of your case to advise you on the best option for your situation.
Call Our New York Personal Injury Lawyers for Help Today
If you suffered a whiplash injury, call (845) 303-2748 for a free case evaluation with BKS Injury Law’s Newburgh, NY personal injury lawyers.